54 Pa. Super. 230 | Pa. Super. Ct. | 1913
Opinion by
This is an action of trespass brought by the plaintiff to recover damages for injuries alleged to have been sustained by collision with one of the defendant company’s cars, at or near the intersection of Liberty ave. with Seventh st., in the city of Pittsburg. Liberty ave., at this point, runs east and west and Seventh st. enters it at right angles and extends north to and beyond Penn ave. Sixth ave. enters the south side of Liberty ave. not directly opposite the entrance of Seventh st., but a little to the west thereof, the eastern curb line of Sixth ave. at the intersection of Liberty ave. being about opposite to the middle of the cartway of Seventh st. The defendant company has two car tracks on Liberty ave. and a like number on Seventh st. and two curved tracks, one connecting the west-bound track on the north side of Liberty ave. with the north-bound track on the east side of Seventh st. and the other connecting said north-bound track with the east-bound track on the south side of Liberty ave. The curved track first mentioned, connecting the Liberty ave. west-bound track with the north-bound track on Seventh st. diverges from the line of the straight track on Liberty ave. at a point between thirty-five and forty feet eastward of the projection of the curb line of Seventh st. as indicated by the plan offered in evidence by the plaintiff, and curving round into Seventh st. within a few feet of the curb at the intersection of the streets connects with the track on Seventh st. at a point thirty-five or forty feet north of the projection of the curb line of Liberty ave. The other curved track connects with the north-bound track on Seventh st. at the same point, but is considerably longer as it extends to the east-bound track on the south side of Liberty ave. and joins that track at a greater distance from Seventh st. Liberty ave. is eighty feet wide, forty-eight feet two inches of which is used as cartway. A number of the lines of street cars operated by the defendant company, among them the line known as the “East, Liberty Express,”
About ten o’clock on the morning of July 3, 1908, the plaintiff approached the south side of Liberty ave. on the sidewalk on the east side of Sixth ave. He thus states the purpose of his going: “I intended to take a car over here on Seventh st. at Penn ave. They make a regular stop at Penn ave. just a block north of this point.” When he reached Liberty ave. he saw, before he left the sidewalk to cross the cartway, an East Liberty Express car standing on the west-bound track at the intersection of the curved track leading to the north track on Seventh st. and he also saw approaching from the direction of Sixth st. a car on the east-bound track, which had not yet reached the curved track leading from that track into Seventh st. The plaintiff left the sidewalk and walked across the cart-way looking at each of the cars several times as he proceeded. The last time he looked at either of the cars was after he had passed both the east and west-bound tracks on Liberty ave. and was in the triangular space between those tracks and the curved track. Pie then looked at the East Liberty Express and says that it was still standing, at the point of the curve, he looked at the east-bound car and it was then midway of the curve. He said he was then about three or four feet from the curved track. The plaintiff had thus far done all that prudence required, he was in a place of safety and the evidence fails to indicate
The plaintiff testified that he heard no gong or other warning of the starting of the East Liberty Express car.
The witnesses for the defendant testified that the plain-, tiff crossed the street without looking where he was going, that the ear was started after the gong had been rung, that the motorman seeing the danger into which the plaintiff was heedlessly walking again rang the bell, applied his brake, and that the car was standing still when the plaintiff tripped over the fender and fell. The plaintiff did not say that he saw the car which struck him, after he had dismissed it from his mind and before the accident. If the question was whether the car was moving or standing still, then, under the evidence, the case was for the jury.
The testimony of the plaintiff, by which alone his case was supported, was entirely frank. He made no attempt to disguise the fact that he had dismissed from his mind, before he reached the tracks upon which it came, the car which he had seen standing, probably forty feet away. He turned his back to the car and walked diagonally towards the track for a distance which he says did not exceed ten feet, and which brought him within the line of the track. While he was doing this the east-bound car, which he had assumed would precede the East Liberty Express, had stopped, and the East Liberty car had started and moved slowly a distance of about forty feet. He knew nothing about the regulations of the company, and there is in this case no evidence of any regulation which warranted him in assuming that the East Liberty
“It is the absolute duty of a traveler or the driver of a team at the intersection of two city streets upon which is laid a line of street railway to look immediately before going upon the tracks, and failure to do so is negligence per se. If when he looks he sees an approaching car so near as to make an attempt to cross dangerous, it is his duty to stop; or, if when he looks at the edge of the tracks his view is obstructed so that he cannot see it then becomes his duty to listen, and under some circumstances it may be his duty to stop as if when he looks and listens he still is in doubt about the location and movement of the car. If in any of these situations he fails in the performance of the duty required he is guilty of contributory negligence and cannot recover. The one positive and imperative duty always required under such circumstances is to look when the tracks are reached and immediately before attempting the crossing. Failure to perform this absolute duty will defeat a recovery under the authority of all our cases:” Smathers v. P. & B. St. Ry. Co., 226 Pa. 212. If the plaintiff had looked before he stepped upon the
The judgment is reversed and the record is remitted to the court below with direction to enter judgment in favor of the defendant non obstante veredicto.